Skip to main content

Court, let voters decide on gay marriage

By Ken Klukowski, Special to CNN
March 28, 2013 -- Updated 1614 GMT (0014 HKT)
STORY HIGHLIGHTS
  • Ken Klukowski: Cases heard by Supreme Court could result in momentous change
  • He says there are questions of whether cases could be tossed because of special circumstances
  • If court issues sweeping ruling, it could deprive voters of chance to weigh in
  • Klukowski: Gay marriage is such a new phenomenon that court shouldn't freeze the debate

Editor's note: Ken Klukowski is the senior fellow for religious liberty at the Family Research Council and the legal columnist for Breitbart News. He filed a brief in one of the cases heard by the Supreme Court this week.

(CNN) -- This week the Supreme Court heard two historic cases on marriage. Even though I was a lawyer in the litigation and in the courthouse both days, I can't predict which way the court will come down. But the outcomes range from nothing at all to fundamentally restructuring the foundational unit of western civilization.

Hollingsworth v. Perry is about whether state laws defining marriage as one man and one woman violate the 14th Amendment of the U.S. Constitution. United States v. Windsor asks whether Section 3 of the Defense of Marriage Act, which defines marriage for federal law and programs as between one man and one woman, is unconstitutional. DOMA passed in 1996 with 78% of the U.S. House and 85% of the Senate and was signed by President Bill Clinton.

The whole nation is focused on the litigation. Ironically, it's possible that neither case will be decided on the merits.

Ken Klukowski
Ken Klukowski

In Hollingsworth, California's governor and attorney general abdicated their duties by refusing to defend their state constitution. So pursuant to California law, the sponsors of Prop 8 — officially registered with the state — stepped in to defend the law, represented by Charles Cooper at Cooper Kirk and the Alliance Defending Freedom.

In Windsor, the defendant was the federal government. But President Barack Obama declared that he believes DOMA is unconstitutional and ordered his Justice Department not to defend it. So per its rules, the U.S. House voted to authorize Paul Clement — probably the greatest Supreme Court lawyer practicing today — to defend DOMA.

Article III of the Constitution limits the jurisdiction of the federal courts. One requirement is that there must be adversity between the parties. Since the defendants in both cases refused to defend their own laws, the court will consider whether the Constitution allows these third-party legal teams to become a proper party to the lawsuits.

There's a second issue in Windsor. Edith Windsor entered into a gay marriage in Canada in 2007 and lived in New York. When her partner died in 2009, Windsor sued to contest the federal estate tax she paid, claiming a spousal exemption.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



But New York did not create gay marriage until 2011, so Windsor was not harmed by DOMA not allowing the federal government to recognize her marriage, since if the IRS used state definitions Windsor would still be regarded an a single woman. Thus it's possible she lacks standing to sue over the issue. It also raises the issue of whether courts must recognize polygamous marriages, which are legal in dozens of nations worldwide.

The swing vote regarding the Article III issues in both cases is probably Chief Justice John Roberts. He openly expressed skepticism in Hollingsworth and led the Court in an hour-long debate in Windsor solely focused on whether the court has jurisdiction.

Assuming the court does decide the merits, the implications are historic.

Windsor would alter America's system of federalism. Only the states determine who can get married. But the federal government is free to decide whom to confer federal benefits on — largely economic entitlements and federal issues such as immigration. Federalism is a two-way street. But if DOMA Section 3 is invalidated, the states will be able to dictate whom the recipients of federal benefits are.

If Windsor is historic, Hollingsworth is earth-shattering. If the Supreme Court declares a constitutional right to marriage other than one-man, one-woman, then all traditional marriage laws in all 50 states will be invalid, and there will be a serious debate (already in a lower federal court) of whether polygamists also have a constitutional right to national recognition.

On the merits, the court seems unlikely to declare an unwritten constitutional right to gay marriage, though arguments did not go as well for DOMA. Justice Anthony Kennedy is likely the swing vote in both.

As Justice Samuel Alito said this week, the Internet and cell phones have been around on this planet longer than gay marriage. It is an energetic debate in all 50 states, and this summer we will learn whether the Supreme Court will shut down this debate by making it a constitutional issue on which the American people are not allowed to vote.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Ken Klukowski.

ADVERTISEMENT
Part of complete coverage on
July 21, 2014 -- Updated 1235 GMT (2035 HKT)
Frida Ghitis: Anger over MH17 is growing against pro-Russia separatists. It's time for the Dutch government to lead, she writes
July 21, 2014 -- Updated 1227 GMT (2027 HKT)
Julian Zelizer says President Obama called inequality the "defining challenge" of our time but hasn't followed through.
July 21, 2014 -- Updated 1157 GMT (1957 HKT)
Gene Seymour says the 'Rockford Files' actor worked the persona of the principled coward, charming audiences on big and small screen for generations
July 21, 2014 -- Updated 1417 GMT (2217 HKT)
Daniel Treisman says that when the Russian leader tied his fate to the Ukraine separatists, he set the stage for his current risky predicament
July 18, 2014 -- Updated 1642 GMT (0042 HKT)
Andrew Kuchins says urgent diplomacy -- not sanctions -- is needed to de-escalate the conflict in Ukraine that helped lead to the downing of an airliner there.
July 19, 2014 -- Updated 0150 GMT (0950 HKT)
Jim Hall and Peter Goelz say there should be an immediate and thorough investigation into what happened to MH17.
July 18, 2014 -- Updated 1507 GMT (2307 HKT)
Pilot Bill Palmer says main defense commercial jets have against missiles is to avoid flying over conflict areas.
July 20, 2014 -- Updated 1755 GMT (0155 HKT)
Valerie Jarrett says that working women should not be discriminated against because they are pregnant.
July 21, 2014 -- Updated 1953 GMT (0353 HKT)
David Wheeler says the next time you get a difficult customer representative, think about recording the call.
July 18, 2014 -- Updated 1933 GMT (0333 HKT)
Newt Gingrich says the more dangerous the world becomes the more Obama hides in a fantasy world.
July 18, 2014 -- Updated 1011 GMT (1811 HKT)
Michael Desch: It's hard to see why anyone, including Russia and its local allies, would have intentionally targeted the Malaysian Airlines flight
July 17, 2014 -- Updated 1914 GMT (0314 HKT)
LZ Granderson says we must remember our visceral horror at the news of children killed in an airstrike on a Gaza beach next time our politicians talk of war
July 17, 2014 -- Updated 1206 GMT (2006 HKT)
Sally Kohn says now the House GOP wants to sue Obama for not implementing a law fast enough, a law they voted down 50 times, all reason has left the room.
July 17, 2014 -- Updated 1214 GMT (2014 HKT)
A street sign for Wall Street
Sens. Elizabeth Warren, John McCain and others want to scale back the "too big to fail" banks that put us at risk of another financial collapse.
July 17, 2014 -- Updated 2016 GMT (0416 HKT)
Newt Gingrich writes an open letter to Robert McDonald, the nominee to head the Veterans Administration.
July 18, 2014 -- Updated 1601 GMT (0001 HKT)
Paul Begala says Dick Cheney has caused an inordinate amount of damage yet continues in a relentless effort to revise the history of his failures.
July 18, 2014 -- Updated 1404 GMT (2204 HKT)
Kids who takes cell phones to bed are not sleeping, says Mel Robbins. Make them park their phones with the parents at night.
July 17, 2014 -- Updated 1729 GMT (0129 HKT)
Buzz Aldrin looked at planet Earth as he stood on talcum-like lunar dust 45 years ago. He thinks the next frontier should be Mars.
July 16, 2014 -- Updated 1804 GMT (0204 HKT)
Mark Zeller never thought my Afghan translator would save his life by killing two Taliban fighters who were about to kill him. The Taliban retaliated by placing him on the top of its kill list.
July 17, 2014 -- Updated 1518 GMT (2318 HKT)
Jeff Yang says an all-white cast of Asian characters in cartoonish costumes is racially offensive.
July 17, 2014 -- Updated 0124 GMT (0924 HKT)
Gary Ginsberg says the late John F. Kennedy Jr.'s reaction to an event in 1995 summed up his character
July 16, 2014 -- Updated 1641 GMT (0041 HKT)
Meg Urry says most falling space debris lands on the planet harmlessly and with no witnesses.
ADVERTISEMENT